ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
29 March 2001 (1) (Interlocutory proceedings - Admissibility - Urgency)
In Case T-18/01 R,
Anthony Goldstein, resident in Harrow, Middlesex (United Kingdom), represented by R. St. John Murphy, Solicitor,
applicant,
v
Commission of the European Communities, represented by P. Oliver, acting as Agent, with an address for service in Luxembourg,
defendant,
APPLICATION for interim measures in the context of an action for annulment under Article 230 EC of the Commission's decision of 12 January 2001 rejecting the applicant's complaint concerning alleged infringement of Articles 81 and 82 EC by the General Council of the Bar of England and Wales,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1.
The applicant is a British national resident in the United Kingdom of Great Britain and Northern Ireland. He is a qualified medical practitioner who, in 1999, completed the Bar Vocational Course, a prerequisite for admission to the Bar of England and Wales and the practice of law as a barrister in that jurisdiction.
2.
On 30 May 1995, the applicant lodged a complaint with the Commission under Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the EEC Treaty (now Articles 81 and 82 EC) (OJ, English Special Edition 1959-1962, p. 87) in respect of certain allegedly anti-competitive rules applied by the General Council of the Bar of England and Wales (Bar Council), the professional regulatory authority in respect of the provision of legal services by barristers in that jurisdiction.
3.
The complaint related, in particular, to the requirement, arising from Rule 210 of the Bar Council's Code of Conduct of the Bar of England and Wales (the Code), that a barrister practising at that Bar should supply legal services only if briefed or instructed by a professional client, to wit by a solicitor or by a member of certain specified professional bodies. This rule is generally referred to as the direct-access rule. The applicant contends that the rule constitutes a restriction of competition contrary to Article 81 EC, inasmuch as it deprives consumers of legal services of the ability to have direct access to the services provided by barristers practising at that Bar.
4.
By letter of 16 June 2000, the Commission informed the applicant that it considered it unlikely that Article 81(1) EC could be applicable to the practices to which reference was made in the complaint, since, in its view, they did not affect trade between Member States to any appreciable extent. The Commission nevertheless invited the applicant, pursuant to Article 6 of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC, OJ 1998 L 354, p. 18), to present any further comments he considered appropriate.
5.
Those comments were submitted by the applicant on 14 July 2000 and supplemented by further material submitted on 12 October 2000.
6.
On 12 January 2001, the Commission communicated a final decision to the applicant, pursuant to Article 3(2) of Regulation No 17, rejecting his complaint concerning the alleged infringements of Articles 81 and 82 EC by the Bar Council (the contested decision), including the further assertions made by the applicant in his reply to the Commission's letter of 16 June 2000.
7.
By application lodged at the Registry of the Court of First Instance on 25 January 2001, the applicant has brought an application seeking the annulment of the contested decision and an order that the Commission bear the costs.
8.
By separate application lodged at the Court's Registry on 31 January 2001, the applicant, in accordance with Articles 242 and 243 EC, brought the present application for interim measures in respect of the abovementioned main case. He claims that the President of the Court should:
- declare [that] the application of Community competition rules to the regulatory framework set up by Council [sic] Directives 77/249/EEC and 98/5/EC is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Community courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty;
- declare [that] the contested decision sanctions the maintenance in force of an unlawful economic sector in the market for legal services throughout the territory of the United Kingdom;
- declare [that] the contested decision fetters the jurisdiction of the national competition authorities and the national courts throughout the territory of the Community thereby leading to the prohibition of the dismantling of the unlawful economic sector and the prohibition of the creation of a lawful economic sector on the relevant market;
- declare [that] the contested decision appears to be a measure which lacks even the appearance of legality to the extent that it is not open to the Commission, when assessing the exercise of a right arising from a provision of Community law, namely a Council Directive, to alter the scope of that provision or to compromise the objectives pursued by it;
- order the operation of the contested decision to be suspended forthwith, until the Court has given judgment on the main application, to the extent to which the Commission conceals the Community nature and effects of the specific legal framework regulating the legal profession, in order to rob Directive 84/450/EEC of 10 September 1984 of its substance in the field of misleading advertising of legal services insofar as the Member States are deprived of all possibility of adopting combative measures against such misleading advertising by the Bar Council in contradiction with the express intention of the Community legislature;
- order the Commission to pay the costs.
9.
The application was notified to the Commission. On 23 February 2001, the latter submitted written observations wherein it seeks the dismissal of the application and an order requiring the applicant to pay the costs.
10.
Following the notification of the present application to the Commission, but prior to the receipt of its observations, the applicant lodged, on 14 February 2001, at the Court's Registry a further interim-measures application in respect of the main case to which this application relates. That additional application, which was not notified to the Commission, was registered with the roll-number T-18/01 R III and is the subject of a separate order adopted today.
11.
Oral observations in respect of the present application were submitted on behalf of the applicant and the Commission at the interlocutory hearing before the President of the Court on 8 March 2001. The applicant was represented by Mr Peter Marks, Barrister, who had been appointed by the applicant's solicitor, Mr St. John Murphy, to represent the applicant at the hearing. During the hearing the parties' legal representatives replied to questions put by the President, who also expressly referred the applicant's counsel to the obligations incumbent upon him and, in particular, upon Mr St. John Murphy, his instructing solicitor, under Article 41(1) of the Rules of Procedure of the Court of First Instance (the Rules)....
